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San Jose Divorce Lawyers Blog

The Benefits of Shared Parenting

One type of custody arrangement where both parents spend roughly the same amount of time caring for the children after finalizing their Santa Clara divorce is called shared parenting. Obviously this type of arrangement won’t work if you and your ex live in different states or if one of you travels frequently on business. However, there are several reasons to seriously consider this option if it’s possible for your family.

Regular visits allow a child to keep in contact with a parent, but shared parenting provides an opportunity for the child to experience the day-to-day bonding that is crucial for a long-term positive relationship. Even though having a child move back and forth between two different homes can be challenging, the opportunity to see each parent as a fully capable adult role model is priceless.

Shared parenting requires both parties to communicate with each other on a regular basis. This can be uncomfortable in the beginning, but will eventually strengthen your relationship with your ex. Even though you are no longer married, shared parenting may allow you to develop an amicable relationship. This will reduce the tension in your household and ultimately benefit your children.

In many homes, childcare is the single largest monthly expense. If you and your ex work opposite shifts, shared parenting may allow you to greatly reduce or even eliminate the number of hours your children spend in daycare each week. Another benefit of shared parenting is that you’ll have a defined period of “me” time each week to relax and focus on personal pursuits. Having time to decompress will make it easier for you to fully focus on the needs of your children when they are under your care.

If you and your ex are interested in shared parenting, you will need an experienced Bay Area family law attorney to develop a custody agreement that protects both of your rights.

Residency vs. Domicile: Where Do I File for Divorce?

Bay Area divorce lawyers want their clients to know that you must live in the state in which you file for divorce. You are not allowed to look at each state’s divorce laws, then pick whatever state you think is most likely to give you a favorable settlement. However, your spouse does not have to be a resident of the state that you file for divorce in. If you moved to California after separating from your spouse, for example, you could file for divorce after establishing residency even if your spouse still lives in another state.

The period for establishing residency varies greatly from state to state. Nevada requires six weeks to establish residency, while it takes one year to establish residency in Maryland. To further complicate the situation, some states will say that a spouse has be domiciled in the state. Domicile is a tougher standard to prove than residency. Domicile requires a permanent home that you intended to stay in. Residency merely requires that you be currently present in a particular location.

Technically speaking, a person can have several residences. However, a person can only have one domicile. For example, someone who travels regularly on business and owns a vacation home may be a resident of California, Florida, Arizona, and Indiana. But, if his mail is sent to his permanent home in California and this is where he votes and has his driver’s license, only California would be considered his domicile.

If you have children with your spouse, you should be aware that the home state of the child will have custody jurisdiction unless your divorce decree states otherwise. If you or your spouse has a retirement or pension plan, the state that has jurisdiction over the person holding the plan is responsible for determining the division of the asset.

If you have questions about how residency affects your divorce, it is best to contact a qualified San Jose divorce attorney.

Using a Private Investigator to Collect Past-Due Child Support

Going through a divorce is never easy, but the experience is much more difficult when your ex refuses to pay the child support ordered by a San Jose family court. There are many government safeguards in place to help parents collect the child support that they are owed. Unfortunately, however, cases still fall through the cracks.

If you don’t feel like you’re getting results from your local child support collection office, you may want to consider hiring an independent private investigator who specializes in child support cases. A private investigator can help you locate the non-paying parent and find information regarding his or her income and assets, but it is not a good idea to hire an investigator who wants to act as a collection agency. A private investigator who offers to collect your money for you will normally take a significant percentage of the money that is collected as his or her fee. In fact, some investigators will take as much as 30-40% of what you are owed. It is a much better idea to take the information the investigator provides you and hand it over to your local child support collection agency, or your attorney. If the agency knows where to find your ex, it is much easier to have his or her wages garnished.

The information a private investigator can find for you may include:

  • Aliases your ex is currently using
  • His or her place of employment
  • Information about any motor vehicles he or she might own
  • Information about any property he or she might own
  • Bankruptcy history
  • Criminal history
  • Professional licenses he or she currently holds

If you are interested in hiring a private investigator to help with child support collection issues, you should first discuss your plan with your San Jose family law attorney. He or she can tell you if this strategy is a viable option for helping to collect the money that you are owed. Some attorneys may even be able to recommend an investigator who has gotten good results for them in the past.

Handling False Allegations of Abuse During a Child Custody Dispute

If you are going through divorce in San Jose, you should be aware that some people will go to shocking lengths to hurt their ex during a divorce proceeding. There are countless “dirty divorce tricks” that people have tried over the years. One of the most heinous involves false accusations of child abuse.

Accusations of child abuse are treated very seriously in Family Court in Santa Clara County California.  Every child custody and visitation decision made by the Court will be made after considering the best interests of the child(ren), and child abuse is never in a child’s best interests.  There are serious criminal penalties associated with child abuse, and there are also serious criminal penalties associated with lying under oath (perjury) when knowingly making a false accusation of a crime.  This blog posting is expressly limited to issues in the Family Court, and no warranty, whether express or implied, regarding any matter that either does or may involve the California Penal Code and/or criminal law, is made herein.

There are two common scenarios involving false abuse allegations during a divorce-related child custody dispute.  Typically it is the mother who accuses the father of sexually abusing the children, or the father accuses the mother’s new romantic partner of sexually abusing the children.  The accusations are often made under oath, but with only a single eyewitness to testify (the mother or the father).  False allegations of violent physical abuse are much less common, because violent physical abuse usually causes bruises or obvious injuries, which could be easily shown with a simple photograph taken right after the abuse.  Sexual abuse is usually harder to prove or disprove, which can make false accusations a tempting tactic for a vengeful ex who wants to cause trouble as you’re trying to rebuild your life.

Cases involving claims of sexual abuse are usually difficult to handle in Court, but they are even more prone to problems when the alleged victim is a young child.  The younger a child is, the more open he or she is to being manipulated into playing along with false accusations.  Additionally, the accuser will often point to behaviors such as bed wetting or throwing unexplained temper tantrums as possible signs of abuse when many children have these issues as a result of the divorce itself.  The motivation to make a false allegation of abuse is usually to take the child(ren) away from a parent, and losing a parent can hurt a child.  Studies have been done to try to quantify the harm to a child of having their father removed from their life, but the statistics are beyond this attorney’s  ability to comment on.  Instead, I will just state that lying about abuse is a horrible thing, and it can cause grave harm to the child.

If you have been falsely accused of abuse, try your best not to panic.  It is natural to be upset and angry about being accused of such a heinous crime, but any impulsive actions on your part could be used against you at a later date. Even if you feel confident your ex has no proof to substantiate the claims, any and all allegations of abuse are very serious.  You do not want to do anything that could place you at risk of losing your children or facing criminal charges.

Once your ex has made abuse allegations, do not discuss your case with anyone but your lawyer.  Do not agree to talk to law enforcement personnel before speaking with your attorney.  An experienced Family Law attorney may suggest that you associate in a criminal attorney.   You may worry that getting an attorney will make you seem guilty, but you need to have an experienced professional on your side to make sure your rights are being protected.

Keep complete records of what you spend on your defense.  A Court finding that the allegations of child abuse were false will allow the Family Court to make an award of legal fees in your favor.  Such a finding will also generally undermine the accusing parties’ credibility with the Court in a lasting fashion.  A finding that there was child abuse will generally result in the loss of custody, visitations being supervised, and a severe loss of credibility with the Family Court.

If you have seen what you believe is evidence of child abuse being perpetrated by the other party, then you should take the child to a medical doctor.  Some forms of evidence disappear quickly.  Medical Doctors are Mandated Reporters of child abuse in California, and they will generally know what to look for.  Because making a false allegation of child abuse can severely hurt your credibility with the Court it is best to have a professional look into the matter.

Is There a Formula for Awarding Alimony?

Although California has a specific formula used to calculate child support, the guidelines for awarding alimony in a San Jose divorce are more complex. Alimony, also known as spousal support, is broken into temporary spousal support (which might be calculated using a mathematical formula) and permanent (post Judgment) support, which is awarded based on multiple different factors. These factors include (but are not limited to):

  • The earning capacity of each spouse
  • Whether or not the person requesting alimony contributed to the degrees or professional training of the person being asked to pay support
  • The ability of the supporting party to provide the support
  • The need of the party seeking support for the support
  • If the divorcing couple has children together, whether or not the spouse requesting alimony can find employment without interfering with the best interests of the children
  • The age and health of both spouses
  • The standard of living established during the marriage
  • Any history of Domestic Violence
  • The assets and obligations of each party

The duration of the marriage is a factor in determining how long a spouse will be eligible for alimony. If the marriage lasted less than 10 years, there is a legal p[resumption that the spouse receiving alimony will get spousal support for no more than half the length of the marriage. If the marriage lasted more than 10 years, the court may not set a specified length for how long the spouse receiving alimony is entitled to spousal support. The burden is placed on the paying spouse to prove that support is no longer needed, but there is still the expectation that the spouse receiving alimony will eventually be self supporting. Unless there are extenuating and/or unusual circumstances, courts will not order lifetime spousal support, and the current trend seems to be to reduce long term support.

Gender is not mentioned in the Family Code as a factor in determining alimony. Women were traditionally the ones award spousal support, and the unstated gender bias remains, as many men feel ashamed to ask for spousal support, but women do not feel ashamed and regularly request it. A growing number of men have been granted alimony in recent years.

If Domestic Violence was the reason for the divorce, this can override other factors. For example, a high earning woman who would otherwise be expected to pay alimony may not be liable for spousal support if she is leaving the marriage because of domestic violence. This has undoubtedly resulted in countless fraudulent domestic violence claims being made, so if you are a man, watch out!  Life, and the law, are not fair.

Since the decision to award spousal support is based on a number of complex factors, it is best to consult an experienced  divorce lawyer in San Jose with any questions that you may have regarding alimony and your divorce.